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Carter v Northmore Hale Davy & Leake & Ors P14/1994 [ 1994] HCATrans 114  (15 November 1994)

Office of the Registry

Perth No P14 of 1994

B e t w e e n -

LOUIS JAMES CARTER

Appellant

and

THE MANAGING PARTNER, NORTHMORE HALE DAVY & LEAKE

First Respondent

THE PROPER OFFICER, WARDLEY AUSTRALIA LIMITED

Second Respondent

THE PROPER OFFICER, WARDLEY AUSTRALIA SECURITIES LIMITED

Third Respondent

THE MANAGING PARTNER, PRICE WATERHOUSE

Fourth Respondent

JONATHAN MICHAEL CAMPBELL POPE

Fifth Respondent

BRENNAN J

DEANE J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 15 NOVEMBER 1994, AT 10.17 AM

Copyright in the High Court of Australia

______________

MR I. McC. BARKER, QC: If the Court pleases, I appear with MR P.G. CLIFFORD, for the appellant. (instructed by Freehill Hollingdale & Page)

MR S.P. CHARLES, QC: If the Court pleases, I appear with MS A.M. KENNEDY, for the first, second and third respondents. (instructed by Minter Ellison Morris Fletcher)

MR J.J. GARNSEY, QC: May it please the Court, I appear with MR G.H. MURPHY, for the fourth and fifth respondents. (instructed by Blake Dawson Waldron)

BRENNAN J: Mr Barker.

MR BARKER: Your Honours, there is before you an outline of the submissions for the appellant.

BRENNAN J: Yes, Mr Barker.

MR BARKER: Your Honours, the cases say that legal professional privilege is in conflict with another principle of great importance, namely that all evidence which reveals the truth should be available for presentation to the Court, but legal professional privilege is accorded paramountcy. Such statements have been made largely in the context of civil litigation. The appellant's primary submission is that the law accords an accused person a special place and special significance. Thus we have the presumption of innocence and the burden of proof beyond reasonable doubt, and the principle that if the citizen is to be tried for a criminal offence he or she has the right to be tried fairly.

It follows from that, we respectfully submit, that the need to protect the individual from an unjust conviction should be reason enough not to permit the law of privilege to obstruct the person from access to material which might, if produced, itself result in an acquittal, or, along with other evidence already available, might result in an acquittal.

The conflict therefore, if conflict there is, is not between the confidentiality wrought by legal professional privilege and the need for courts to possess all relevant facts; it is between the confidentiality and the right of the person whose liberty is at stake to properly defend criminal charges. I respectfully submit that it must be possible for the law to effect a reconciliation, or a compromise, between those two principles.

Your Honours, we do not come here to deny nor do we seek to diminish the profound importance of legal professional privilege in the system of justice. What we do submit, however, is that it should not present as an impediment to a fair trial from the perspective of the accused.

It is an issue of great importance, I submit. We do not, of course, have the death penalty, but in New South Wales at least there is support for its restoration, and whether we talk about life or liberty, if the disclosure of privileged material might save the former or protect the latter, we submit that it ought to be disclosed. Your Honours, there are many statements in the Australian authorities on legal professional privilege concerning its fundamental importance and its place in the justice system. Perhaps I could take Your Honours just to one or two of those: firstly, the Attorney-General for the Northern Territory v Maurice, [1986] HCA 80; (1986) 161 CLR 475. At page 490, reading from the judgment of Your Honour Justice Deane:

It is a substantive general principle of the common law and not a mere rule of evidence that, subject to defined qualifications and exceptions, a person is entitled to preserve the confidentiality of confidential statements and other materials which have been made or brought into existence for the sole purpose of his or her seeking or being furnished with legal advice by a practising lawyer or for the sole purpose of preparing for existing or contemplated judicial or quasi-judicial proceedings: see generally, Baker Campbell. That general principle is of great importance to the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law and to the administration of justice and law in that it advances and safeguards the availability of full and unreserved communication between the citizen and his or her lawyer and in that it is a precondition of the informed and competent representation of the interests of the ordinary person before the courts and tribunals of the land. Its efficacy as a bulwark against tyranny and oppression depends upon the confidence of the community that it will in fact be enforced. That being so, it is not to be sacrificed even to promote the search for justice or truth in the individual case or matter and extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or to any tribunal or person with authority to require the giving of information or the production of documents or other materials:

Your Honours, there are several such statements. The authorities I think are well known to the Court: Waterford v The Commonwealth, [1987] HCA 25; (1987) 61 ALJR 350, at 353. In column 2 in the judgment of Your Honour Justice Brennan:

That the public interest accounts for both legal professional privilege and public-interest immunity is clear: as to the former, see R v Bell.....as to the latter, see Sankey v Whitlam.....But the public interest served by legal professional privilege lies in its tendency to broaden the operation of the rule of law as well as to enhance the individual's capacity to secure its protection, whereas the public interest served by public-interest immunity is the protection of some of the processes of the Executive Government. The public interest which accounts for legal professional privilege explains the existence of the general legal rule, but it does not fall to be evaluated by the court in every case as must be done when public-interest immunity is raised. If legal professional privilege applies, the court has no function to perform in deciding whether the privilege otherwise advances or diminishes the public interest.

McHUGH J: Mr Barker, is that case not reported in 163 CLR as well?

MR BARKER: If it is, I apologise, Your Honour. Yes, I am told it is; I am sorry. Perhaps without reading them, could I give Your Honours the citations in Baker v Campbell, [1983] HCA 39; (1983) 153 CLR 52, at pages 66 and 67, page 95, pages 105 and 106 and 114 to 118.

I cite these simply to expose, of course, the fundamental importance of legal professional privilege which we do not seek to gloss over or get around. There are statements in those cases which on their face apply to criminal cases as well as civil. Indeed, in Baker and Campbell at pages 128 to 130, His Honour Justice Dawson specifically referred to criminal cases but not from the perspective of the accused. At page 130, at the top of the page, he said:

Speaking for myself, and with the greatest of respect, I should have thought it evident that if communications between legal advisers and their clients were subject to compulsory disclosure in litigation, civil or criminal, there would be a restriction, serious in many cases, upon the freedom with which advice or representation could be given or sought.

And of course in the passage I read from Attorney-General v Maurice, Your Honour Justice Deane referred to any court - - -

TOOHEY J: Mr Barker, can you annunciate the principle that you are asking the Court to adopt?

MR BARKER: Yes. Because of the special nature of criminal proceedings and the special position of the citizen who is in peril of losing his or her liberty, we would seek that the principle to be declared is this, that if material points to innocence, may prove innocence or materially assist the defence of criminal charges, it constitutes an exception to legal professional privilege and should be disclosed.

McHUGH J: Suppose the material contained a confession by the person seeking the advice that he was guilty of the crime with which your client was charged, for example. Would the exception apply in that case?

MR BARKER: It would not apply, we would submit, in respect of the position of a co-accused who would be prejudiced at his trial by production of privileged documents.

McHUGH J: Supposing he was neither a co-accused or disclosed the commission of some other offence altogether, quite unrelated to the particular charge.

MR BARKER: Your Honour, that would depend upon whether it was going to assist the trial of the person seeking access to the documents. The way we put it is that if there is evidence which may assist the defence in a material way, then the defence should have it. See, there is nothing new in the proposition that if, at the end of a trial, after a conviction evidence emerges which if it had been led at the trial may have led to an acquittal, or is likely to have led to an acquittal, there will be held to have been a miscarriage of justice, the new evidence cases.

What we say here is that an accused person should not have to go to trial if it is likely there is evidence which would assist him or her and which is not available because of legal professional privilege.

McHUGH J: What is the machinery for examining the claim of privilege in this situation? How does one go about it? Must the documents be produced?

MR BARKER: Yes, the documents would be produced to the trial judge, who would - the subpoena would be issued; the claim would be made for legal professional privilege; the documents would be produced. If they are clearly privileged, then the trial judge would determine whether or not they are apparently of such assistance to the accused that they should be disclosed.

TOOHEY J: But do you confine it to the issue of a subpoena? Might that arise in the course of cross-examination?

MR BARKER: It could arise in the course of cross-examination. I use the word "material" earlier because we do not confine the principle to written material, but it happens in this case that it is the written material which has led to these proceedings.

TOOHEY J: No, I was not suggesting that you were confining it to written material but that in the course of cross-examination it might emerge that there are documents in existence which, on your approach, might contribute to the defence. Now, the same principle, I take it, would apply in that case?

MR BARKER: Yes, Your Honour, yes.

TOOHEY J: It is just that a moment ago you spoke in terms of the accused not having to go to trial. Are you suggesting that the principle is such that somehow it precludes a trail of the accused where this material is not available.

MR BARKER: No. Perhaps I used the word loosely, but he should not have to go to trial if this material is available. He should not have to go to trial without it because he then goes to trial at a disadvantage. It is articulated in England, of course, but perhaps before I come to that could I take Your Honours briefly to the special nature of criminal proceedings and the special position of the person on trial which have their own line of cases. The most rigid rule of exclusion, or one of the most rigid rules of exclusion from evidence, is the principle that the identity of an informer may not be disclosed.

Now, that rule is an absolute bar in civil cases against disclosing the name of an informer but it is subject to one exception, as Your Honours know, in criminal cases and that is that if the disclosure of his or her identity would assist the accused, well then, the disclosure should be made. That is the only circumstance in which the identity of an informer can be disclosed.

Now that, of course, has been recognised, at least since 1890 in Marks v Beyfus, and there is a full discussion by Your Honour Justice McHugh then in the Court of Appeal in Cain v Glass (No 2), (1985) 3 NSWLR 230 at 246C to 247D. The claimants there sought disclosure of the identity of the informant:

the Minister for Police claimed public interest immunity -

and at 246G:

The protection of the identify of informers is the result of the immunity from disclosure granted to communications made in the public interest. The protection is no longer regarded as the consequence of an independent rule or privilege but is recognised as a particular manifestation of the doctrine of public interest immunity.

His Honour referred to D v National Society:

The informer rule, however, has one unique characteristic: contrary to the submission of the appellants, the court does not weigh the public interest in adducing evidence relevant to curial proceedings against the public interest in maintaining a flow of intelligence concerning the commission of crimes. As Lord Diplock pointed out in D v National Society for the Prevention of Cruelty to Children:

"...By the uniform practice of the judges which by the time of Marks v Beyfus 25 QBD 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure."

The justification for the exalted position of the informer rule in that spectrum of public interest immunity is that, unless the anonymity of informers is protected "the flow of intelligence about planned crime or its perpetrators" will stop.

And, further down in the next passage:

The paramount position of the informer rule produces the result in civil proceedings that the identity of an informer in a criminal case is not admissible in any circumstances.

And Your Honour went on to hold that the disclosure if necessary to the proper conduct of the defence should be made at committal. So that whilst other public immunity claims required a balancing between the interests of the public and the interests of the accused, the informer principle does not require a balancing; it is a rigid exclusion except where necessary to assist the accused.

Then as to the other sorts of public interest immunity, again the judgments accord a special deference to the position of the person facing criminal charges, for example, in Sanky v Whitlam, [1978] HCA 43; (1978) 142 CLR 1 at page 42 about point 5, His Honour the then acting Chief Justice said that:

If state papers were absolutely protected from production, great injustice would be caused in cases in which the documents were necessary to support the defence of an accused person whose liberty was at stake in a criminal trial, and it seems to be accepted that in those circumstances the documents must be disclosed.

The issue came before this Court in Alister v The Queen, [1984] HCA 85; (1983-84) 154 CLR 404, and Your Honours will recall that the issue there was the production of documents by ASIO sought on subpoena. At page 414 Sir Harry Gibbs said this, at point 4:

Both Burmah Oil Co Ltd v Bank of England and Air Canada v Secretary of State for Trade support the view that where the Crown objects to the production of a class of documents on the ground of public interest immunity, the judge should not look at the documents unless he is persuaded that inspection would be likely to satisfy him that he ought to order production; in the words of Lord Wilberforce in Air Canada....., he must have "some concrete ground for belief which takes the case beyond a mere `fishing' expedition". In the latter case the House of Lords divided on the question whether, before inspection is ordered, the documents should appear likely to support the case of the party seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings; the majority favoured the former view. In both cases the proceedings were civil and not criminal. Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial....., so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere "fishing" expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence.

At page 431 His Honour Mr Justice Murphy said:

The authorities which have been reviewed by the Chief Justice persuade me that the trial judge should have inspected the documents subpoenaed to ascertain if they contained anything which tended to show that the case against the accused was fabricated (or otherwise tended to assist the accused in their defence.....There is a public interest in certain official information remaining secret; but there is also public interest in the proper administration of criminal justice. The processes of criminal justice should not be distorted to prevent an accused from defending himself or herself properly. If the public interest demands that material capable of assisting an accused be withheld, then the proper course may be to abandon the prosecution or for the court to stay proceedings.

At page 451 Your Honour Justice Brennan spoke of the right of an accused person to compulsory process, again focusing upon the rights of the person embroiled in criminal proceedings. At about point 4:

The right of an accused person to compulsory process as of course to secure witnesses has been acknowledged for nearly three centuries. It is so basic and important an aspect of our criminal procedure that a trial in which the right is denied cannot be, in my opinion, a trial according to law. There is no distinction to be drawn in this respect between a subpoena ad testificandum and a subpoena duces tecum.

TOOHEY J: You do not appear to be arguing for a balancing process.

MR BARKER: No, I do not, Your Honour.

TOOHEY J: The principle as you have expressed it seems to involve a proposition that so long as the material will assist the defence or may assist the defence, that is enough to bring down any claims for legal professional privilege.

MR BARKER: Yes, that is the ground upon which we were given special leave and that is the ground we argue, and we do not seek to argue that it is appropriate to do a balancing exercise case by case, which seems to be the approach in some of the United States cases which say that at least in State cases the privilege will yield if the interests of justice in a particular case require it, whether it be a civil case or a criminal case.

McHUGH J: Mr Barker, if the privilege was subject to this exception, it could only favour the accused indirectly, could it not?

MR BARKER: Yes.

McHUGH J: In the sense it could be used for cross-examination; it could be used to pursue a line of inquiry. But would it ever be directly admissible?

MR BARKER: It may be, Your Honour. One would not know until one saw the material.

McHUGH J: It is a communication; it is hearsay, is it not?

MR BARKER: There may be letters, for example, from a Crown witness to his legal adviser on the very subject of the criminal proceedings.

McHUGH J: I accept that, but basically it would be a matter for cross-examination if you did not get the admission, then you could tender the letter, for example, to contradict the witness' evidence.

MR BARKER: That would probably be the most common way in which the material would be used, but it could go anywhere.

McHUGH J: I know, but I am just thinking of it as a matter of policy. It seems a high price to pay for this exception if it means revealing the client's confidences to his or her legal adviser and, on the other hand, the benefit to the accused would be usually indirect rather than direct.

MR BARKER: It would be entirely a matter of circumstance, Your Honour. One could not lay down any rule about what benefit there might be to the accused. It would have to be a material benefit before any disclosure would be allowed.

BRENNAN J: What do you say about the right of two co-accused, each of which is blaming the other, to obtain proof of the other's evidence as given to the instructing solicitor?

MR BARKER: Your Honour, we would accept that from the principle we contend for, as it has been accepted, apparently, in England.

BRENNAN J: And if they were not co-accused but were charged separately, would the same rule apply?

MR BARKER: Not in those circumstances. The exception we would contend for is where there is a joint trial.

BRENNAN J: So that it would be open to one accused to seek to exculpate himself or herself by securing confessional statements made by another party to that other party's instructing solicitor.

MR BARKER: Yes, Your Honour. Now, it may be that again should be accepted from the principle we contend for, but it is a step removed from the joint trial position.

McHUGH J: But supposing Brown is charged with murder and Smith goes along to his solicitor and says, "Look, I'm very worried. The real murderer in this was Jackson, and in fact he gave me the gun to dispose of and I disposed of it. I'm very worried. What are my rights? What can I do about this?" Now, you would say such a communication would be admissible - sorry, not admissible, but subject to your exception.

MR BARKER: It could lead directly to a man's acquittal for murder. If it is not led it could lead to - - -

McHUGH J: But it might lead, in that particular case, to the client being charged with the offence of being an accessory after a fact to murder.

MR BARKER: Your Honour that, with respect, would be a bit unlikely, that he would - to commence the process one must show, as with any other subpoena, that the material sought is material likely to assist.

McHUGH J: That would certainly assist you in that case. There would be some evidence that somebody else had committed the murder, and open up a whole line of inquiry. Surely that would be material.

MR BARKER: That is the point of the submission. Without the production of the material the line of inquiry would not be open and the accused conceivably goes on to a conviction and what follows because this material is not made available to him. Now that, I respectfully submit, is a very high price to pay for attention of the absolute nature of the privilege.

McHUGH J: As often happens in court cases, one tends to think in terms of what happens in a particular case but there are wider more general interests at stake and the question is, what effect on the administration of justice generally would this exception have and it might have a dramatic effect.

MR BARKER: It seems to have been accepted in England for some years.

McHUGH J: But is Barton applied in practice in this country? I must say when I was at the bar I was never able to persuade anybody to follow it or, at least, to apply it on the few occasions I ever tried it.

MR BARKER: There is no authority on this but it seems to be from time to time applied. For example, there was a special leave application before this Court in the matter of Loscam which we referred to in this special leave application which was a case from Melbourne which was not reported and, indeed, there were no reasons for judgment beyond those delivered extempore. But the date of it was 18 June 1993, Loscam Ltd v Brambles. The point we argue now was sought to be argued but special leave was refused because the appeal could not enjoy sufficient prospects of ultimate success having regard to factual conclusions arrived at by the trial judge, Justice Harper.

But in his ruling on 15 January 1993, he recognised that "legal professional privilege may yield on balance anyway, if denying access to the defendant would cause injustice" and he examined the document with that in mind.

Now whether or not he was right about the "on balance" part, he recognised that in the circumstances, fairness would have permitted inspection if the documents were material.

BRENNAN J: What were the nature of the proceedings then?

MR BARKER: It proceeded under the Trade Practices Act, I think, Your Honour, for a penalty.

McHUGH J: Were they contempt proceedings?

MR BARKER: I am sorry, Your Honour, I am not sure.

McHUGH J: I have just got a vague recollection that it had something to do with contempt.

MR BARKER: The point of my raising that case at all is simply to answer Your Honour Justice McHugh's question that sometimes it is applied in - yes, they are contempt proceedings.

In England it seems to have been generally accepted since Barton's case. One finds unequivocal statements in Halsbury (Fourth Edition), Volume 11(2), paragraph 1163. That is on page 972 of Volume 11(2) under the heading "Legal Professional Privilege".

Paragraph 1163:

Confidential communications made for the purpose of obtaining legal advice from professional advisers are privileged from disclosure so long as they are not communications made with the intention of furthering a criminal purpose. In a criminal trial the privilege is not absolute, in that documents which help to establish the innocence of an accused will not be privileged from disclosure.

Now if Your Honours would go to the next page to note 3, you will see that the learned authors cite Barton in a case called Ataou which is on our list. Then they go to Marks v Beyfus, Duncan v Cammell Laird. Marks v Beyfus being, of course, the informer case, and the position of the accused seeking access to privileged documents is equated with the position of the accused seeking identification to the informer.

TOOHEY J: But would you suggest that either of the two latter cases would support the proposition in Halsbury?

MR BARKER: Not alone but, as I submitted earlier, they point to the very special position in which the law holds the accused, the person facing trial, which is why we have this exception to the very rigid informer rule.

Could I take you to Archbold, Volume 1 (1993), paragraph 12-12:

(3) Documents in possession of another lawyer

If there are documents in the possession or control of a solicitor which, on production, help to further the defence of an accused man in criminal proceedings, no privilege attaches to prevent their production at the behest of the defence: R v Barton.....(Barton had been employed in the relevant firm of solicitors and the charges against him related to activities in the course of his duties. The documents in question were not the subject of any charge and were not being relied upon by the Crown.) The privilege which attaches to information obtained or documents made in contemplation of civil proceedings is not waived when the information or documents are made available either for the limited purpose of assisting in the conduct of a criminal investigation or on application by the defence during the trial: the privilege against production is merely superseded by the greater public interest in ensuring the acquittal of an innocent man. The privilege remains for the purpose of the civil proceedings even where the defendant in the criminal trial is the defendant in the civil proceedings.

TOOHEY J: Mr Barker, could I just ask you this, trying not to lose sight of the principle that is involved, but, if you are right and the documents, assuming that they assist the defence, or may assist the defence, are excluded from legal professional privilege, are the documents then available to be used for whatever purpose - - -

MR BARKER: No.

TOOHEY J: - - -the defence seeks to use them, and subject to questions of admissibility and self-incrimination, and so on, but - - -

MR BARKER: The privilege yields only for the purpose of the criminal proceedings. That was the point.

TOOHEY J: Yes, but what does that mean? Could the defence then, armed with the particular document, carry out inquiries of its own from other witnesses; showing other witnesses, for instance, the document; when I say "other witnesses", potential witnesses?

MR BARKER: Well, Your Honour, if there is a legitimate line if inquiry which is going to assist or is likely to assist, yes, that would be a consequence.

TOOHEY J: I only ask that because there is some reference to confidentiality, but if you are coming to that perhaps you could defer answering the question until then.

MR BARKER: Well, let me give this answer, that the problem of disclosure of the documents if it be a problem, that is disclosure outside the criminal process, can be overcome by orders as to confidentiality. That is what happened in that case of Saunders, which is before you, it is an unreported decision but it is illustrative of the principle in practice, that Mr Saunders, who was a former executive of the Guinness Company to be tried, sought production of documents which were clearly privileged, the privilege in hearing in Guinness, and the trial judge ordered that they be produced but that they be produced in conditions of confidentiality, either worked out between the parties or if necessary as ordered by him.

TOOHEY J: That would put a rather unsatisfactory brake on the defence, would it not? I mean, you might want, having seen the document, the value that it may have would be a line of inquiry that might need to be pursued.

MR BARKER: That may be, Your Honour. I do not pretend that working out case by case the principle we contend for will be free from difficulty - - -

TOOHEY J: No, but as I said I did not want to get away from the principle, but sometimes these examples help to point up what the principle is.

MR BARKER: But, it would be better to have the document under conditions of confidentiality if it helped than not have the document at all, and this was what Mr Justice Henry did in the Saunders' case.

May I just read on in Archbold? We do not assert the test he is about to talk about is appropriate, but I will read it to Your Honours:

Similarly, the privilege against production of communications between a solicitor and client arising out of criminal proceedings against the client may be over-borne if a defendant can show, on a balance of probabilities, that the claim for privilege can be sustained because there is no ground on which the client can any longer reasonably be regarded as having a recognisable interest in asserting the privilege and the legitimate interest of the defendant in seeking to breach the privilege outweighs that of the client seeking to maintain it.

Now, we do not contend for that principle. It intruded into the argument in the Canadian case of Dunbar & Logan and it was considered in the English case of Ataou, and it was also favourably considered in this case by Justice Rowlands in his judgment in the court below. But, our argument does not depend on an examination of the use which might be made of the privilege by the person in whom it inheres, the privilege is either there or it is not. Our simple proposition is that if the document would help the accused, well then that is an exception to the privilege, and the privilege should yield for that limited purpose.

There is a convenient distillation of Saunders in Archbold on that page that I have been reading; perhaps I could take Your Honours to that. At paragraph 12-13:

All the above authorities were considered in R v Saunders, unreported, January 10, 1990, CCC, where privilege was claimed by a plaintiff in respect of documents and evidence sought by the accused who also was the defendant in the civil proceedings. In granting the defence application, Henry J said that the court has to strike a balance between the competing public interests of maintaining legal professional privilege and ensuring the acquittal of the innocent:

"No court is going to under-value the public interest in the acquittal of the innocent. in questions of balance, the court is clearly going to pay particular attention to the protection that the court can give to the separation of the legal professional privilege in civil proceedings, because clearly the greater protection that the court can give to the privilege in civil proceedings, the more ready the court will be to order the production of the document in criminal proceedings . . . . So a protection for the preservation of the privilege in civil litigation could be obtained by an undertaking given by the accused in those terms -

that is British Coal Corporation terms -

qualified by the proviso that that undertaking was not to be discharged without leave of the court in the civil proceedings. And with an undertaking of that sort it seems to me that the protection of legal professional privilege in the civil proceedings would be preserved to a large extent."

He uses the expression "questions of balance". The only balance we would contend is relevant is the examination by the trial judge to determine whether documents might help. Perhaps "balance" is not even the appropriate expression, but the English authorities talk about balancing and one of the things that emerges from the Saunders case is that the ability to protect the confidentiality of the documents in respect of civil proceedings was something which was taken into account in determining whether an order should be made for disclosure. But none the less, the judgment is significant because of the very great importance it accords to the position of Mr Saunders as a person who was facing trial. It relies substantially upon Barton.

Might I take Your Honours to the Canadian case, Dunbar and Logan, (1982) 138 DLR (3d) 221, at page 251. The facts do not matter a great deal, but what was in issue was the right of the accused to see documents which had come into being at a time when a man called Bray was a co-accused and who had been acquitted. Their Lordships in Dunbar and Logan approved Barton for the purpose and cited the passage from Barton:

I think the correct principle is this, and I think that it must be restricted to these particular facts in a criminal trial, and the principle I am going to enunciate is not supported by any authority that has been cited to me, and I am just working on what I conceive to be the rules of natural justice. If there are documents in the possession or control of a solicitor which, on production, help to further the defence of an accused man, then in my judgment no privilege attaches. I cannot conceive that our law would permit a solicitor or other person to screen from a jury information which, if disclosed to the jury, would perhaps enable a man either to establish his innocence or to resist an allegation made by the Crown. I think that is the principle that should be followed.

DEANE J: If that is right, how would that apply in respect of the privilege against self-incrimination? That would have to go also, would it not?

MR BARKER: No, Your Honour. This would not affect the privilege against - - -

DEANE J: Why, because the considerations favouring disclosure are the same, but the consideration favouring concealment is certainly no stronger?

MR BARKER: No, but if in the circumstances disclosure would be an infringement of the privilege against self-incrimination - - -

DEANE J: I was just wondering what Justice Caulfield said there though, how that would lie with the privilege against self-incrimination.

MR BARKER: Well, Your Honour, my answer is that it would not disturb the privilege against self-incrimination.

McHUGH J: But it does seem surprising that, on your argument, what can happen is that you could get the information, perhaps you could even call the solicitor to say that his client had admitted to the crime with which your client is charged, but you could not subpoena the client and then ask him in the witness box whether he was guilty of the offence.

MR BARKER: Well, that may be a consequence in a particular case, Your Honour.

McHUGH J: I appreciate that, but we have got to look at this from a wide-ranging perspective.

MR BARKER: The difficulty with it is that if the privilege is to be maintained in the face of the disadvantage accorded to a person facing a serious criminal charge, then the Court is looking at a potential injustice.

McHUGH J: That is one side of the coin but the other side of the coin is that if the rule is relaxed in the way you would seek to relax it, then people will not seek legal advice or, if they do, they will not be candid with their advisers and the administration of justice will generally suffer.

MR BARKER: Your Honour, that, with respect, is the "sky's falling" approach. It has not had that effect, one would think, in England.

McHUGH J: Who knows?

MR BARKER: One does not find criticism of it. It seems to be approved by text writers. It is approved by text writers here. For example, the Australian Cross On Evidence records the principle - volume 1 of the loose-leaf service, at page 25,118 paragraph [25300] - in that the learned authors say this:

We have seen that the privilege is rooted in public policy. It is for this reason that the judges have created the exception for communications to facilitate crime or fraud. Public policy cannot be invoked to protect these activities which are themselves inimical to public policy. The privilege may also have to way to the rule that in a criminal trial no one should be able to refuse to produce documents which might establish the innocence of the accused -

and he talked about Barton, and cited the passage from Barton:

This was a case where the documents were in the hands of a party unconnected with the hearing. It is clear from the judgments in Baker v Campbell that the privilege is available to protect documents from production in criminal proceedings. The limitation upon the application of the privilege where the document might assist an accused must therefore depend upon some other principle of public policy. It is probably not correct to say that legal professional privilege can never be used to protect a document which an accused person requires for his defence. Whether in any given case this privilege will be overridden by the interests of an accused person will depend upon the circumstances of the case, including the materiality of the document to the issues raised bona fide by the defence.

Now, all he is saying there, with respect, is that if it is clearly shown that the documents will help, having regard to issues raised or issues to be faced, then they should be disclosed.

TOOHEY J: Mr Barker, how far does the existing exception take you, that is, communications to facilitate crime or fraud?

MR BARKER: In some cases it may be that that is sufficient answer to a claim for privilege, but only in some cases.

McHUGH J: There would not be too many I would not think.

MR BARKER: No, certainly not in this case. Again, it is a matter of circumstance. In D v National Society, [1977] UKHL 1; (1978) AC 171, Lord Denning, at page 190, seems to have accepted this proposition of that question. At the bottom of page 190 - - -

BRENNAN J: This is [1977] UKHL 1; (1978) AC 171?

MR BARKER: Yes, Your Honour.

First, when information is given in confidence by a client to his legal adviser, so as to obtain legal advice, the court will respect that confidence. It will not compel, or allow, the legal adviser to disclose the information(without his client's consent) save when it is necessary for it to be disclosed so as to expose crime or fraud, see Reg v Cox and Railton, or to benefit a man accused of crime: see Reg v Barton.

And, in Baker v Campbell, Chief Justice Gibbs also referred to Barton's case in his dissertation about the exceptions, commencing at page 67, point 2. His Honour said this, that:

Moreover, under the existing law, the confidentiality of communications between solicitor and client, even when made solely for the purpose of professional advice or assistance in legal proceedings, is not absolute. There are a number of circumstances in which evidence of the confidential communication will be received.

This, of course, was a dissenting judgment, Your Honours. He cited these exceptions. He talked about the crime and fraud exception, and then he talked about the Calcraft v Guest problem, and then, over the page, at page 68, point 3:

Further, it has been held that if a privilege communication would tend to establish the innocence of a person charged with a crime, the requirements of natural justice override the privilege and the document must be produced -

and he cited Reg v Barton. Although, Your Honours, the proposition that it may be relevant to determine whether the accused still needs the privilege has intruded into the Canadian and English discussion, it is none the less the position that both in Canada, at least in Ontario, and in England, the privilege has been overridden in the interests of accused people.

McHUGH J: I know you do not rely on the balancing exception, but why, if there is to be an exception, should the balancing exception not apply? Why should one not weigh up the relevant interests?

MR BARKER: Well, one has to.

McHUGH J: Well, that is not as I understand your argument. You say if it assists the accused that is sufficient.

MR BARKER: That is the weighing process.

McHUGH J: It is a rule rather than a weighing - - -

TOOHEY J: You have not got anything at the other end of the scales.

MR BARKER: True. As I said earlier on, perhaps "balancing" is not an appropriate word. But it must involve an examination of the circumstances of the case; the circumstances of the accused; the issues raised by the defence; the issues facing the defence and the nature of the material examined.

McHUGH J: I do not see why you should have a narrow exception confined to criminal cases. One could imagine cases where it would be of vital interest to a civil case that particular material be disclosed and the interests of the parties in maintaining the privilege might be fairly slight.

MR BARKER: Your Honour, this Court has consistently said that the privilege has ascendancy over the notion that the Court should be given all material which might lead to - - -

McHUGH J: I know but that is because the Court has taken a view that a balancing has already been done by the law. There is a fixed rule of law.

MR BARKER: I do not seek to extend this argument to civil cases because of the quite special position accorded to the person on trial.

McHUGH J: But why should the Crown not have the benefit of this law?

MR BARKER: Because the Crown is not accorded that special position. The Crown is not at peril. The Crown is not going to be hanged or get life imprisonment but the accused may. That is the whole focus of this submission. It is because of the peril facing the accused, whether it be loss of life, loss of liberty or whatever, that the special rule ought to be made.

McHUGH J: As Justice Deane put to you, I think it is very difficult to maintain this proposition and say that the self-incrimination rule ought not to be subject to the same exception.

MR BARKER: We do not put that proposition.

McHUGH J: I know you do not but it is fairly difficult to see how logically you can maintain a distinction between the two.

MR BARKER: In practice, if disclosure would erode a man's privilege against self-incrimination, well then, surely, the privilege could be called in aid. I mean, we are not seeking to demolish a privilege against self-incrimination. If that gets in the way, it gets in the way.

McHUGH J: But you say there is no problem about getting a solicitor to disclose that somebody has confessed to the crime, however, you cannot get the person himself to give evidence that he committed the crime.

MR BARKER: That, again, may be a necessary consequence in a particular case.

BRENNAN J: How would that work? You would call the confessionalist, you would take the objection and you would say, "Have a look at that document. Is that your signature?", and tender it.

MR BARKER: With respect, Your Honour is citing an extreme case; one which is - - -

BRENNAN J: Well, is it? I would have thought that counsel with the necessary instructions and with a modicum of enthusiasm for the task would find that a very usual sort of case.

MR BARKER: One would firstly have to demonstrate the material existed and was likely to assist.

BRENNAN J: He would have got it out of the solicitor first on discovery, before the trial started.

MR BARKER: In criminal proceedings, Your Honour?

BRENNAN J: Yes, on your argument.

MR BARKER: By subpoena, Your Honour means?

BRENNAN J: Yes.

MR BARKER: Yes. Well, if the material existed, if privilege is claimed in respect of it, if it is identified, if it would assist the accused, our argument is that it should be produced. Now, Your Honours point to difficulties in particular cases and Your Honours may well be right, but the converse position we submit is worse. The very notion that an accused person may go to gaol for want of production of a privileged document, we respectfully submit, is abhorrent, and it is surely of transcending importance when one, for this argument, balances that position against difficulties which might arise case by case.

TOOHEY J: But could I just ask you this, Mr Barker. I know you are arguing in terms of the subpoena for the production of documents. Assuming that the principle requires the documents to be produced, do you then accept that whether the documents can be used in the course of the trial depends upon the ordinary rules of relevance, admissibility, self-incrimination and the like?

MR BARKER: Yes. This does nothing to the rules of evidence except that it sets aside legal professional privilege, to the extent that that affects - - -

TOOHEY J: Yes, but on your argument, it appears to set it aside only to the extent of making the material available to the defence, in the sense of physically making the material available to the defence, but what use the defence can then make of it, I understand you to be saying, just depends upon the ordinary rules of evidence.

MR BARKER: Subject to this exception - I mean, the exception would apply equally to the reception of evidence as to the production of the documents.

McHUGH J: That is why I put to you at an earlier stage, it seems to me that in the overwhelming majority of cases, the only use that the accused would get out of this material, would be indirect use. Pursue a line of inquiry, use it for cross-examination, very rarely you might be able to use it to tender it to contradict something a witness has said, but I cannot think myself of an illustration where something that was the subject of legal professional privilege would itself be directly admissible in evidence.

MR BARKER: Your Honour, it could be anything.

McHUGH J: Well, give me an illustration of a privileged communication which the accused could get hold of and immediately tender in the case, with nothing else - not to contradict a witness.

MR BARKER: In this case?

McHUGH J: In any case.

MR BARKER: In this particular case, one of the subpoenas is against an accountant called Pope. Mr Pope, as it happens, was the accountant for Mr Connell during the years when his company was flourishing. Mr Pope is a Crown witness against my client and the other accused. What the Crown says is this, that at Connell's request, Mr Pope, unknown to my client, made an examination of receivables, or money owing to Rothwells, and told Connell that Rothwells was insolvent and that he said, "Well, if Mr Pope could see that, the auditor should have seen it", although they were embarking on different exercises.

McHUGH J: But this is the sort of material you would be able to cross-examine Pope about, is it not?

MR BARKER: Yes, Your Honour, but - - -

McHUGH J: The communication itself will not be able to be put in evidence, will it?

MR BARKER: No. Post-liquidation, Mr Pope was retained to advise the liquidator about the financial position of Rothwells and about the auditor. He has made reports to the liquidator which clearly bear upon issues, a complete coincidence of issues, between that and those to be raised at the trial. One would have thought that if they were helpful, they could be tendered; why not?

BRENNAN J: Are they privileged?

MR BARKER: If the privilege goes.

BRENNAN J: Where does the privilege arise?

MR BARKER: It is claimed that they were made at the request of the solicitor for the liquidator to assist in litigation. So we do not dispute that those documents are privileged. That is not an issue.

McHUGH J: But what would they go in for, under the exceptions under the Evidence Act? Because at common law they would be hearsay, they would not prove the facts.

MR BARKER: Your Honour, as the accountant for the company they would be accompanied by, presumably, documents which go to demonstrate the assertions he makes in the report. They may go to proving negligence but not criminality, I do not know. They are documents which may or may not be capable of tender in the accused's case. Almost undoubtedly they would be documents suitable for cross-examination but, of course, that is not Your Honour's question.

McHUGH J: The example you have given tends to stimulate this response in me, which I had been thinking about earlier, that maybe you are arguing for too wide a proposition, that maybe the exception should be more narrowly confined. It must be, not merely that it would assist the accused, but that it does not disadvantage anybody else or it does something along those lines, Mr Barker.

MR BARKER: Well that, Your Honour, is one of the English approaches and it is the approach in the American States. I have confined the argument the way it is confined because that was the basis upon which we were granted special leave. It may be that Your Honours see some virtue in a more flexible rule which takes account of the respected position of the parties even after it is shown that the documents are helpful and would assist the accused.

TOOHEY J: That is taking you right back into a balancing exercise, is it not, on that approach?

MR BARKER: Yes.

TOOHEY J: Well, it might not necessarily be a balancing exercise because it may be that the Court does the balancing in effect by stating a rule of law which has to be applied rather than weighed up, depending on the circumstances of each particular case.

MR BARKER: Yes. Of course, I must say, that as has been said in this Court, in the cases that I have cited, the balancing exercise is one which the law has provided for before the privilege is claimed.

TOOHEY J: But, all you are arguing - when I say all you are arguing - what you are arguing for is essentially the right to inspect documents.

MR BARKER: Yes.

TOOHEY J: What happens thereafter is, in one way, not a matter for us.

MR BARKER: Quite.

TOOHEY J: Except to the extent that it might throw light upon the principle for which you are arguing.

MR BARKER: Yes, Your Honour, the use to be made of them is another matter. I simply say that it is conceivable they could be used directly in the trial. Your Honours, could I take you briefly to the United States' cases which we have cited.

BRENNAN J: Mr Barker, no doubt we could find many authorities in American jurisdictions which will tend to show a variety of views. Would it be convenient if you were to confine yourself to the authorities on which you seek to rely and the particular propositions that are contained in them?

MR BARKER: Speaking generally, they demonstrate that in the States where these judgments were delivered, attorney-client privilege is flexible, more flexible than Australian law would have it, and can yield in appropriate cases in what might be conceived to be the interests of justice. Perhaps I could - - -

TOOHEY J: Do any of these involve a decision of the Supreme Court of the United States?

MR BARKER: No.

TOOHEY J: It is one of the problems, is it not? You end up with a sort of head-counting exercise. How many States are there and how many have gone this way and how many have gone the other way?

MR BARKER: There are three problems here, Your Honours and I must say it is not for want of trying to find the material. One of them is the distinction between attorney-client privilege and work-product privilege and the work-product privilege that is the result of the labours of the attorneys is a very much qualified privilege. And that can be seen from Hickman v Taylor which is at the Circuit Court of Appeals for the third circuit[1947] USSC 5; , (1946) 329 US 495, and I will not trouble Your Honours by taking you right through this, but it was recognised by the court that - and at page 512 in respect of the work-product privilege, near the top of the page:

But the general policy against invading the privacy of an attorney's course of preparation is so well recognised and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. That burden, we believe, is necessarily implicit in the rules as now constituted.

Now, that merely goes to show that the material which the attorney produces is not necessarily sacrosanct, if reason can be shown why it should be disclosed.

BRENNAN J: This is based on federal rules, is it not?

MR BARKER: Yes, that is the federal case but that was in the 40s, but I do not think the later amendments to the federal rules have changed that position. There seems to be no direct - - -

BRENNAN J: Do we have the text to the federal rule set out there? Is it rule 34 at page 582, footnote 6?

MR BARKER: The bottom of page 512:

Rule 34 is explicit in its requirements that a party show good cause before obtaining a court order directing another party to produce documents.

In Australia, of course, there is no question but that material would be absolutely privileged, subject to whatever the exceptions may be. I must say there are some rather bizarre cases where the State was permitted to call against an accused person a psychiatrist retained by his attorneys to examine him. I do not rely on that as a desirable intrusion into Australian law, but it simply shows the terribly flexibly nature of the privilege in those States that entertain such a position.

BRENNAN J: Was there any discussion of principle in any of these American cases which will really illuminate the problem before us or these instances of the American situation?

MR BARKER: The nearest we could get to it, Your Honour, is a case of The State of New Hampshire v Eason, 577 A.2d, 1203. Mr Eason was convicted of murder and one of the grounds of his appeal to the Supreme Court of New Hampshire was that he was not permitted to cross-examine a witness who had invoked attorney/client privilege. That is set out at page 1209 in the first column, about half-way down the page:

The final claim raised by the defendant is essentially that the superior court's ruling limiting the scope of his cross-examination of Bill Drew's attorney of record denied him his State constitutional right to "produce all proofs that may be favorable to himself" and to confront witnesses. This claim, however, is also without merit because the defendant has failed to provide the requisite showing that his need to cross-examine Drew's attorney as to matters protected by the attorney-client privilege warranted the suspension of that privilege. Although a trial court may not summarily reject a criminal defendant's claim of his right to cross-examine a witness who has correctly invoked the attorney-client privilege, it is up to a defendant who wishes to overcome an evidentiary privilege to show that the admission of privileged information is at least reasonably necessary to his defense.

GAUDRON J: And how is that to be done, because you contend for exactly the same thing here, do you not, in a sense?

MR BARKER: Yes, that is why I say that is the nearest we can get to it.

GAUDRON J: Yes. The difficulty really is, of course, that the privilege is breached immediately the documents are produced, which is necessary before anybody can determine whether or not they are in any way relevant to the defence.

MR BARKER: Yes, I appreciate that, Your Honour. If the privilege keeps the documents from the trial judge, well then, of course, the accused person has no way of knowing whether or not they would in fact be helpful. Now, if the privilege is to be maintained and retain that absolute quality, well then, of course, that is the end of it. The process would necessarily require absent consent and inspection by the trial judge. But, of course, that may occur in a situation where it is not conceded that the documents are privileged but, as Your Honour knows, it is common enough for a judge to look at the documents to determine that issue and, in a sense, I suppose, even then the privilege is breached if, in fact, they are privileged; it all becomes rather circular. But our argument necessarily involves the notion that the only way, unless by consent, the issue could be determined, would be by the judge looking at and being assisted by counsel for the accused and the Crown as to what the issues really are and in what way and to what extent they may materially assist the accused.

There are perhaps two other American cases I would take Your Honours to briefly: one is in the Matter of Kozlov, (1979) 398 A.2d 882 - that is the Supreme Court of New Jersey - and the question was whether an attorney was entitled to call in aid attorney/client privilege when called as a witness. He was cited for contempt but, without concerning Your Honours with the facts, at page 887 the court said, next to paragraph 5:

But there are necessary foundations to the valid piercing of any such privilege -

that is attorney/client privilege -

one of which is absent here. There must be a legitimate need of the party to reach the evidence sought to be shielded. There must be a showing of relevance and materiality of that evidence to the issue before the court. The record here clearly bespeaks the existence of these necessary elements. But it must also be shown, as pointed out by Justice Mountain for this Court in Farber, to the satisfaction of "the trial judge, by a fair preponderance of the evidence including all reasonable inferences, that * * * the information * * * could not be secured from any less intrusive source."

That is a qualification standing in the way of somebody seeking to pierce the privilege but, none the less, it is capable of being pierced. The other case was a civil matter; Cohen v Jenkintown Cab Company, (1976) 357 A.2d 689. It is a judgment of the Superior Court of Pennsylvania. What happened was, Mrs Cohen was struck by a vehicle, the driver of which was unknown, and, as it happens, the driver told an attorney that he was the driver and disclosed his position as the proper defendant. At page 691 - the attorney was called Mr Gross - about five lines down the left-hand column:

Mr Gross' statement indicated that Mr Guise -

who was the driver -

consulted with him prior to testifying at the arbitration hearing and admitted to having been the driver of the car which struck Mrs Cohen. Guise sought advice as to whether he should maintain his false story at the hearing, tell the truth, or refuse to testify. Although Mr Gross advised Guise to either tell the truth or stand on his Fifth Amendment right not to incriminate himself, Guise elected to perjure himself.

Then Mr Guise died and it was sought to put into evidence the instructions he had given to his attorney. Under Australian law, the privilege continued to obtain, as it did under the law of Pennsylvania.

TOOHEY J: But you would get that answer on interrogatories, would you not?

MR BARKER: From - - -?

TOOHEY J: Well, I suppose, depending who you sued, but, in this case the cab company was sued; if you sued the driver as well, or even if you sue the cab company, could you not ask them who was the driver of the car at the time?

MR BARKER: Of course, Your Honour, but that does not appear to have been done and there was nothing, it seems, to link the cab company with the accident.

BRENNAN J: What is the question of principle you are demonstrating here?

MR BARKER: The question of principle is that the court satisfy the privilege on an examination of the facts in that case.

BRENNAN J: So?

MR BARKER: Simply, really, upon the basis that it was found that a need for the testimony of the attorney was clearly established. The holder of the privilege was dead and the court said, if the privilege goes, no one is going to come to much harm.

BRENNAN J: But you are not contending for that, are you?

MR BARKER: No, I are not.

BRENNAN J: What is the relevance of this case?

MR BARKER: Because it shows again that the concept of legal professional privilege in that State is very far from absolute. But as I said, Your Honour, the nearest we can get to this situation is the Eason case, where the right is recognised if it can be established. Your Honours, those are my submissions.

BRENNAN J: Thank you, Mr Barker. Mr Charles.

MR CHARLES: If the Court pleases, the members of the Court should have written submissions from us, some six pages in length.

BRENNAN J: Yes, we have those, thank you, Mr Charles.

MR CHARLES: Your Honours, having set out in those submissions a number of the statements in support of the rule of legal professional privilege, there really is very little more in relation to those written submissions that I can say. The references are contained. The Court is well familiar with this subject. It has had the matter argued ad nauseam, I do not mean this morning, before it on other occasions. What I propose to do was to make no further reference to the six pages of written submissions but to go on to other matter. Your Honours, we - - -

DEANE J: I have only got five. Am I deprived of one?

MR CHARLES: Your Honour, there ought to be a half page numbered 6.

BRENNAN J: Half page numbered 5.

MR CHARLES: Might I see one of Your Honours' copies? It is possible that the pagination of those submissions is different from - I do not know how this happened, Your Honours, but the pagination of Your Honours' set of the submission is different from mine.

TOOHEY J: Do we have something that we should not have?

MR CHARLES: No, Your Honours plainly have the right submissions. They have just been reprinted by somebody else. I know not who.

Your Honours, we support the judgment of Mr Justice Seaman at first instance, and we support the judgments of the Full Court in Western Australia, save to the extent of the rider that Mr Justice Rowland, in his main judgment, included at pages 146 to 147 of the appeal book, dealing with the expiration of privilege when someone has ceased to be able to show a real interest in the maintenance of the privilege. In that respect, Your Honours, we support the judgments of the Chief Justice at appeal book 115, and Mr Justice Franklyn at pages 152 to 154 where Their Honours express their reservations about that passage in Mr Justice Rowland's reasons for judgment.

TOOHEY J: But the way in which the case has been argued by Mr Barker, Mr Charles, does not really call on us to express a view on that rider, does it?

MR CHARLES: It does not, Your Honour. I am simply putting to the Court how it is that we would support as being correct the statements of law contained in the reasons for judgment both at first instance and on appeal.

Your Honours, of course, one would understand the force of the suggestion made by my learned friend which is, in effect, that every reasonable endeavour should be made to ensure that an accused is able to put forward all oral and documentary evidence necessary to the defence or which might tend to assist the defence. But, in so far as it is suggested that that requires an invasion of legal professional privilege, may I very briefly take the Court back to some statements made in earlier cases?

Your Honours, I have copies for the Court - this case is not on our list of authorities - of the A.M. & S. Europe Ltd v Commission of The European Communities. I have six copies here. It is a matter, Your Honours, of simply taking a couple of short extracts. I have included the first four pages simply to set the scene of the case. It is a decision with which Your Honours are familiar. It has been cited in earlier cases. But may I take Your Honours to page 913 - - -

BRENNAN J: What is the reference to it generally?

MR CHARLES: I am so sorry, Your Honour. It is (1983) QB 878.

BRENNAN J: Thank you.

MR CHARLES: And the passage that I am about to take the Court to is from the submissions of Advocate General Slynn, now of course, Lord Slynn of Hadley, in particular, Your Honours, at page 913.

In the previous four pages, Lord Slynn had taken the European Court of Justice to the submissions in relation to what was said to be the rule as to legal professional privilege in all the countries of the European community and set them out one after the other.

And then, Your Honours, at page 913, beginning at B, Lord Slynn's submission was this:

From this it is plain, as indeed seems inevitable, that the position in all member states is not identical. It is to my mind equally plain that there exists in all the member states a recognition that the public interest and the proper administration of justice demand as a general rule that a client should be able to speak freely, frankly and fully to his lawyer.

Then after the French interpolation of which I will not trouble the Court:

Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if proceedings begin, for representation it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks.

And then, Your Honours, moving to part of the judgment of the court at page 941, two pages from the judgment are set out at C on page 941:

Since the aim of Community law is to find the best solution having regard to national laws, it is necessary to examine the spirit, orientation and general tendency of the national laws on legal privilege. The CCBE -

that is the Consultative Committee of the Bars and Law Societies of the European Community -

submits that on this matter there can be no doubt. As appears from the Edward Report, not only do all member states afford some protection to confidential relations between lawyer and client, but there is a remarkable consistency in the explanations of the ratio legis and a clearly discernible tendency to extend rather than to reduce the scope of that protection. Finally, a study of comparative law shows that the protection of legal confidence is a characteristic feature of democratic systems and that, on the other hand, it has little place in the law of absolutist or totalitarian states.

Now, Your Honours, there are like statements to be found in Baker v Campbell which is among Your Honours list of cases, particularly the passage [1983] HCA 39; 153 CLR 52 at page 95 and the judgment of Justice Wilson. And it is significant, of course, because it was His Honour that changed sides from his previous judgment in O'Reilly's case. But the passage Your Honours will recall in which His Honour said:

The adequate protection according to law of the privacy and liberty of the individual is an essential mark of a free society and unless abrogated or abridged by statute the common law privilege attaching to the relationship of solicitor and client is an important element in that protection.

Now my learned friend has this morning quoted a passage from Your Honour Justice Deane's judgment in Attorney-General(NT) v Maurice which of course we would rely on in like context[1986] HCA 80; ,, 161 CLR 475 at page 490.

TOOHEY J: But Mr Charles, the appellant, as I understand it, would not quarrel with any of this but simply say that in a very special situation, namely the position of an accused facing trial, that principle should yield in the way that has been suggested.

MR CHARLES: I entirely follow that, Your Honour. What I am seeking to submit is that the force of his apparently reasonable suggestion carries with it a high cost and it is to that high cost that I am about to turn; the high cost being to this very significant and fundamental bulwark of a free society, the point being amply made in the judgments to which reference has just been made.

DEANE J: Except is there not a tendency to coalesce the two separate heads of legal professional privilege here, in that one can readily accept all the high-sounding statements in a case where the privilege attaches because of confidential advice being sought or given? It is not so apparent that the same considerations apply to a document prepared for the purposes of anticipated litigation in circumstances where no confidential disclosure or advice is contained in it, such as the type of document that Mr Barker seemed to suggest Mr Pope's report was.

MR CHARLES: Your Honour, with respect, there might be an answer to the proposition Your Honour is putting to me. If the Court would be good enough to look at the subpoenas, it provides a good example of the width of the material which is now being sought by the appellant. If the Court would look at page 9 of the appeal book, the Court will see there the subpoena duces directed to the managing partner of our client, Northmore Hale, and then on pages 10 and 11, the Court will see the documents that are sought: all files, et cetera, every possible description of a document, dealing with the rescue of Rothwells, and then a variety of different issues, which might be subsumed under the first, but which no doubt go to an elaboration of that first proposition.

Your Honours, there following in the appeal book, pages 12 to 14, a like subpoena directed to a proper officer of Wardley Australia, and then, thirdly, one directed to the proper officer of Wardley Australia Securities Limited, and that then is followed by the subpoena duces directed to Mr Pope.

To obtain an indication, Your Honours, of the material which is in question, there is an affidavit of Ms Kennedy, which begins at page 25 of the appeal book, and annexed to that is exhibit AMK5, which sets out the privileged documents which are in question in these proceedings and, in particular, at pages 44 to 45, the Court will see what this case, in relation at least to Wardleys, is about.

Now the matters which Your Honour Justice Deane was putting to me might be regarded as being those documents prepared at 2, Draft Proofs of Evidence, and 20, on page 45, the statements and affidavits for the purposes of other proceedings against Mr Connell.

Now, the relevance, Your Honours, is in a sense clear in that on the face of it these proofs and statements deal with matters which, almost certainly, will in some respect bear on what is to occur in the trial.

BRENNAN J: It is a teasing description of a document to say that it is a draft proof prepared by the solicitors, is it not?

MR CHARLES: I have not seen the document, I cannot take Your Honour further into it, but teasing indeed. However, the forensic advantage that the appellant would no doubt hope to gain by obtaining these would be for a very close examination of statements in those proceedings for the purposes of comparison with any evidence given in the criminal proceedings and equally, no doubt, vigorous cross-examination designed to point up any such difficulties which might indeed lead one to think that the prospect, which my learned friend put to the Court in argument, the awful prospect of an innocent man going to gaol for want of a document, may possibly have substituted for at the prospect of a guilty person being found innocent because of the forensic advantage of having obtained a number of other statements for the benefit of cross-examination.

In other words, I do not intend to be critical by this comment, but it is obviously a fishing expedition that is involved in this application.

Now, having seen the width of the documents that is sought here, another good example of the sorts of situation in which privileged information of this sort of kind might be being sought is Reg v Saunders, which my friend has referred to the Court; Mr Saunders being the former Chief Executive of Guinness in the attempted take-over of distillers in the United Kingdom.

Now, Your Honours, what this leads to is that there is plainly a potential for almost any transaction to have criminal consequences, quite unknown to the party seeking legal advice. Now, the charges involving Mr Connell and Mr Carter relate to an alleged conspiracy to defraud the public by deceitfully conceding and falsely betraying the true financial position of Rothwells. The charges, Your Honours, are set out in the appeal book at pages 1 and following. I have simply taken the first of the charges for this purpose; there are others that follow.

The consequence in a society which is increasingly complex and complicated, in so far as its commercial matters is concerned, heavily regulated by bodies such as the Australian Securities Commission, the Trade Practices Commission and with the.....of the Director of Public Prosecutions cast to seek the potential for prosecution, is this in the context of legal professional privilege?

In the past, if you went to a lawyer for advice in relation to a commercial transaction, you would be told that the disclosure that you made to that lawyer would be sacrosanct, subject to these following situations: that if you were involved in the furtherance of some illicit enterprise, then you would have no right to protection; if you acted in such a way as to waive your privilege, obviously you would lose it, and, if Parliament chooses to take it away, then, in the limited circumstances of Parliament's action, you would lose the privilege.

The problem with what my friend is putting to the Court, is that if this exception is now grafted on the law relating to legal professional privilege, the citizen will have no idea, at the time he or she goes to a lawyer seeking commercial advice, what is the likelihood of the statements being made becoming relevant to some other criminal prosecution of which you know nothing at that stage, and you have reason to know nothing. It is something which is wholly out of your control.

A person, or a company, may be proposing to deal with you in circumstances which, on their face, appear entirely innocent; the reality may be that the persons on the other side of this transaction are engaged in some sort of conspiracy to defraud their own company, or other people. You may, quite unknowingly, be drawn into those proceedings as a witness, and immediately, if my friends are right, at that point, your communications with your lawyer become potentially open. If they bear on the subject with which that person is charged, then they will be, as my friend puts it, as I understand it, you will have lost the privilege. It is an exception to legal professional privilege.

TOOHEY J: Of course, you point, as it were, to one end of the spectrum, and reasonably so, but, on the other hand, Mr Barker tends to point to the other end of the spectrum. If you get away from, say, commercial cases, for a moment, and you take a straight out case of murder, and it is known, or believed, that someone else may have made a confession to their own legal practitioner, your argument has to embrace that situation, just as Mr Barker's has to embrace the other end, as it were.

MR CHARLES: Indeed, Your Honour. Of course, I accept that and likewise, presumably, in circumstances where one may have been involved in a motor car accident or have seen someone injured, there are also the discussions that one may have had with a lawyer afterwards, possibly in relation to civil proceedings of one's own, may become in just the same way exempted from legal professional privilege because in some way, relevant to a crime that you did not even know, was occurring at the time or which is now alleged to have been occurring at that time.

Your Honours, the only point I seek to make is that if one permits this exception to the rule of privilege, it is inherently destructive of the whole privilege for the very reasons that have been put by so many members of different courts at different times. If I could just take the Court back briefly to one further statement, they were quoted by Mr Justice Seaman at first instance at page 85 of the appeal book in His Honour's reasons. Quoting from Pearse v Pearse, the reference to which, Your Honours, appears in page 85 at line 11, where:

Knight Bruce V-C pointed out, in a judgment which Lord Selborne LC was subsequently to describe as "one of the ablest judgments of one of the ablest Judges who ever sat in this Court" that it could not even be sacrificed to promote the main purpose of the existence of courts of justice, namely, the discovery, vindication and establishment of truth.

The two following statements, Your Honours:

"And surely the meanness and the mischief of prying into a man's confidential consultations with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness, and suspicion and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself."

Then of course the comments of Lord Langdale in Reece v Trye, 9 Beav, upon which we also would rely.

Your Honours, the line of authority upon which my friends found their argument but which they discard when it comes to the solution which they are putting forward to this Court, because what they are seeking is pretty much an unbridled exception to the rule, whereas a harness of at least some kind has been applied to the exception where it has been accepted in England and in English textbooks, is, in our respectful submission, not a satisfactory line of authority. It is produced on varying grounds and with differing consequences.

Can I take the Court briefly at the start to Barton. I do not propose to be long, Your Honours, in dealing with any of these cases. The comment has been made in some of the references to this case which are critical that it was decided on circuit and extempore. Our submission is that that is not so much the problem as that the learned judge founded his statement of principle on natural justice and went on to eliminate the privilege. His Lordship's view was simply that "no privilege attaches". That was, Your Honour will recall, the statement appearing on page 1194e, in roughly the middle of the page.

So far as Mr Justice Caulfield was concerned there was no question of a balancing exercise and no examination of any question of the continuing interest of the client wanting to maintain privilege. It is simply, as I think my learned friend Mr Garnsey put in the court below it, we regard it as being a fair thing. Now, Your Honours, that was taken on in R v Craig (1975) 1 NZLR at page 597 and in Craig, Barton was cited to Sir Robin Cooke but Barton was not in the judgment actually mentioned or applied. Now it should be said, Your Honours, that in Craig it is, of course, the quite different situation, not of the defence seeking to rely on a privileged document but the Crown wanting to call a prosecution witness and Mr Justice Cooke then, in this judgment, introduced the notion of the expiration of a recognisable interest in the privilege. In that case I think it was because the person claiming the privilege had, in fact, been acquitted.

The third case in the list is Dunbar and Logan, 138 DLR (3d) 221 - that is the Canadian decision. In Dunbar and Logan the court had Barton cited to the court but not Craig, and Mr Justice Martin dealt with these questions at pages 251 to 253. There is a discussion of the problem, but His Honour in fact did not have to decide the question, or the Barton question, having found that privilege had not attached or had been lost for other reasons but, in our submission, the ratio of Dunbar and Logan is that privilege in criminal cases cannot be justified when the person claiming the privilege:

no longer has any interest to protect -

We take that, Your Honours, from page 252 at point 4.

Now, Your Honours, the next decision in this line of authority is R v Ataou (1988) 1 QB at page 798, a decision of the Court of Appeal presided over by Lord Justice Woolf, but the judgment being given by Mr Justice French. Your Honours will see that all three of the last decisions were cited, no comment was made on the critical fact that in Craig the prosecution was seeking to call evidence over the objections of the accused, a situation, Your Honours, in which it is difficult to see how like public policy or natural justice considerations could apply.

The Court of Appeal's test was, however, derived from Craig as Your Honours will see at page 807 at D to F. This is a case where it is an accused seeking to overcome legal professional privilege, so it is a situation akin to Barton and Dunbar and Logan and not to Craig, but none the less His Lordship says:

Basing ourselves on the principle which attracted Cooke J., as cited above, and on the passage from Cross on Evidence and amended for the purposes of the issues raised in this appeal, we would set out the principle as follows: "When a communication was originally privileged and in criminal proceedings privilege is claimed against the defendant by the client concerned or his solicitor, it should be for the defendant to show on the balance of probabilities that the claim cannot be sustained. That might be done by demonstrating that there is no ground on which the client could any longer reasonably be regarded as having a recognisable interest in asserting the privilege. The judge must then balance whether the legitimate interest of the defendant in seeking to breach the privilege outweighs that of the client in seeking to maintain it."

Now, that is a statement of principle which is somewhat unhappily phrased because what it leads to, Your Honours, is that one starts with a question, whether there is any ground upon which the person seeking to maintain the privilege has a reasonable interest in doing so, and it would seem, from the way in which it was put, that it is only then, once you have decided that there is no such reasonable interest, that you then get to the question of balancing, whether the legitimate interest of a defendant, seeking to breach the privilege, outweighs that of a client in seeking to maintain it.

Now, Your Honours, that was taken up in Saunders, which is the next case on the list, the unreported decision of 10 January 1990, with Mr Justice Henry's reasons for judgment included and, if Your Honours turn to the print of the judgment at pages 20 to 22, His Lordship takes up this point, setting out the words that were used by Mr Justice French in the Court of Appeal, at the bottom of 20 and going into page 21, and the submission was there made, on the part of Guinness, seeking to maintain the privilege that - this is at C, on page 21:

there can be no balancing exercise unless Mr Saunders has demonstrated that he cannot be reasonably regarded as having a recognisable interest in asserting the privilege, and Mr Saunders cannot demonstrate that. However, the rest of the judgment makes it perfectly clear that that is not what the Court of Appeal was saying.

And Mr Justice French is quoted then:

"Applying this test, there are only two factors which might have tended to show that Harvey continued to have a recognisable interest in asserting the privilege, and if so" -- and those are the crucial words -- "that his interest outweighed that of the appellant in seeking to breach the privilege."

His Lordship then continued by asserting that there was to be a balancing exercise engaged in. That exercise, Your Honours, His Lordship sets out. After quoting from Mr Justice Caulfield, at page 25, his balancing exercise is set out on page 26.

Now, of course, my learned friends are not asking this Court to contemplate a balancing exercise. Our difficulty is that various members of the Court, in response to propositions that my friends have put, have taken a view that might well be something less than what the appellant is asking for as the appropriate course. But, the balancing exercise that was suggested on page 26 is:

Clearly I have no power at any rate at this stage to make such an order, but I offer the suggestion that on Mr Saunders giving an undertaking in the terms indicated, the documents could perhaps be examined by counsel for the defence in the presence of counsel for the Crown on a counsel-only basis, and if agreement was not reached on what was likely to be relevant or admissible, that they should then come to the court for a resolution of that dispute. That course would, it seems to me, at any rate, best reconcile the competing public interests, namely, the preservation of Guiness's public interest against the disclosure of these documents in civil proceedings and the public interest relating to the disclosure of information tending to establish innocence in the criminal proceedings to which Mr Saunders is a defendant.

McHUGH J: Well, first public interest is not the public interest that this Court has identified in terms of legal professional privilege. I mean, the Court has taken a much wider view of what the public interest is.

MR CHARLES: Yes. Your Honours, the guide from Mr Justice Caulfield in the passage which His Lordship set out on the previous page in the print of the reasons, Your Honours will see at point F on page 25, is that those were now procluded in this case will have to contain evidence that is both -

relevant and admissible -

and then over the page again, at the top of page 26:

I have no doubt the point I have made in this ruling will be appreciated and only those documents which are relevant and admissible will be brought before the court.

That raises some real problems in itself, if the Court were to contemplate a balancing exercise of any kind, because relevance, no doubt, is one thing, and matters such as prior statements or proofs made by a solicitor might well be relevant in the sense that they bore on the events relating to those with which the appellants here are now charged, but admissibility is an entirely different question and no doubt relevance and the use that might be made of the document in cross-examination would be quite enough to satisfy the test otherwise suggested of something which might tend to assist in the defence of the accused.

Now the other point we make, Your Honours, is that these tests which are suggested both by Mr Justice Caulfield and Mr Justice Henry really provide very little guidance indeed as to how any such balancing exercise is to be worked out.

TOOHEY J: It may well require the defendant to disclose the defence in advance.

MR CHARLES: Yes, which is in itself a matter of significant difficulty. It would be very difficult for the judge to be able to understand, and beforehand, what was the relevance of particular issues, or the fact that a statement which bore little apparent difference from the proof of evidence in the criminal proceedings, how that would be of any real assistance, or throw up any real new fact, which might justify its production to the defendant in breach of privilege. Now, Your Honours, we accept that the exception for which my friends contend has certainly been taken up by some of the text writers as a further exception to privilege and the book cited in.....as McNicholls Work on Evidence is certainly one which evidence is an apparent acceptance that there is such an acceptance.

My friends also rely on the Australian edition of Cross at page 25,118 and the paragraph is 25300. If I can just take the Court very briefly to that. Your Honours will see that far from being accepted by the learned authors of the Australian edition of Cross, the last line on page 25,118 shows a very careful hedging of the acceptance:

The privilege may also have to give way to the rule that in a criminal trial no one should be able to refuse to produce documents which might establish the innocence of the accused.

It may be, Your Honours, that that very careful hedging comes from the fact that the two authors of the Australian edition of Cross are both lawyers with great practical experience of giving advice to members of the commercial community as opposed to a purely academic interest in the subject.

Now, Your Honours, may I now go very briefly to the position in the United States. We have prepared some short additional submissions on the position in the United States, and I certainly do not propose to take the Court at length through these documents. What we submit they show, Your Honours, is that there is a very clear distinction between the position maintained in Federal Courts as opposed to the position in State courts, that Federal Courts have strictly maintained the rule in relation to legal professional privilege without any exception for criminal defendants. On the other hand, State courts - and Your Honours would hardly be surprised about this - have produced a variety of outcomes and a number of them have grafted on some form of exception.

BRENNAN J: Yes, Mr Charles.

MR CHARLES: Your Honours, the trend in those state courts which would override privilege in the interests of a criminal defendant, we submit, is either to balance the defendant's need for the privileged evidence against and the policies and interests underlying the privilege or to apply a three-pronged test requiring the moving party to show those three things which are referred to in the case my friend put to the Court this morning, the matter of Kozlov, firstly, a legitimate need for the information; secondly, relevance and materiality of the evidence to the issues in the case and, thirdly, that the information could not be obtained by any less obtrusive means.

Your Honours, what I propose to do rather than take the Court through these submissions in any detail is, we handed up I think on Friday last, a supplementary list of cases, some fourteen cases which I think the Court will have and I intend simply to indicate where, in these submissions, we make reference to those cases and the pages in those cases upon which we rely for the submissions which are contained here.

I notice the time, Your Honours. I can start on the exercise if the Court wishes.

BRENNAN J: How long do you expect the remainder of your submissions to take, Mr Charles?

MR CHARLES: I would expect, Your Honour, not longer than a quarter of an hour.

BRENNAN J: Mr Garnsey?

MR GARNSEY: About 45 minutes.

BRENNAN J: In that case, we will adjourn now until 2.15 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

BRENNAN J: Mr Charles.

MR CHARLES: Your Honours, I was going to give some more precise references to the American case law that we have taken the Court to in our supplementary submissions. I should say, Your Honours, that on the first page of those submissions in the third line, the author is not - that should not be a "q", but a "g"; I think it is Gergacz.

Your Honours, the first case to which we make reference is on page 2, United States v White. That is case 12 in our list, Your Honours. The reference is given at the top of page 2 of our submissions, Your Honours, 970 F 2d , the relevant page is page 334. The court in question is the Court of Appeal's Seventh Circuit.

Next, Your Honours, on page 2, in United States v Nixon, the case involving President Nixon's tapes, that is a Supreme Court decision. It is case 1 on our list of cases and the relevant passages, Your Honours, appear at pages 709 to 710 and 712 to 713. Immediately below that, Your Honours, is Washington v Texas, which is case 2 on our list. That again is a decision of the Supreme Court and my belief is that the note in question - it is my belief because I have got a lexis print - appears at page 21 of the original report[1967] USSC 183; , 388 US 14.

The next case, Your Honours, at the bottom of page 2, is Martin Marietta Corp, which is case 3 on our list of cases, the Court of Appeal's Fourth Circuit, and the passage in question appears at page 622 in the right-hand column at point 7 of the page. On page 3 of these submissions, Valdez v Winans - that is case 6 in our list of cases. It is a decision of the Court of Appeal's Tenth Circuit and the relevant passages begin at page 1089 of the report in the right-hand column and travel into page 1090, the left-hand column.

At the top of page 4, Your Honours, is a reference to Upjohn Co v United States. That is a third decision of the Supreme Court. It is case 5 on our list, and the relevant passage is at page 396.

Four lines down is United States v Roberts, which is case 7. That is the Court of Appeal's second circuit and the relevant passage, Your Honours, is at page 676 at point 5 of the page. Three lines down is United States v McGrady, which is case 8. That is the Court of Appeal's Eighth Circuit, and the passage is at page 18, the left-hand column, at point 2 of the page. Three lines down is United States v Jacobs; it is case 9 on our list. It is a decision of the District Court of California. The page reference is 1303 in the left-hand column, paragraph 4.

Four lines down, Your Honours, Jenkins v Wainwright, which is case 10 on our list. It is the Court of Appeal's Eleventh Circuit and the passage appears beginning at page 1392, the whole of the right-hand column to page 1393, point 1. At point 7 of page 4 of our submissions is Schwimmer v United States. That is case 11 on our list. It is the Court of Appeal's Eighth Circuit and the relevant passages are page 863, paragraphs 13 and 14, 864, paragraph 18 - that is in the left-hand column - and page 866, paragraph 25 in the right-hand column at point 4.

On page 5, Your Honours, there is only one case to which our supplementary list goes. That is in the middle of the page, In re John Doe Grand Jury Investigation, a decision of the Supreme Court of Massachusetts. It is case 13 on our list and the passage, Your Honours, is at page 485 in the North-Eastern Reports which begin at page 69; it is at page 72.

The last case to which we make reference, Your Honours, is in the last paragraph on page 7, the fourth-last line, Wells v Vasquez, that is case 14 on our list, that is the Court of Appeal's Ninth Circuit, and the whole of the case is relevant, Your Honours. The purpose of those submissions, Your Honours, was to attempt to establish that, at least in Federal Courts, and although not directly addressed by the Supreme Court, a firm line had been maintained in criminal cases by Federal Courts, both in relation to subpoenas and oral testimony, upholding legal professional privilege as a basis for not making evidence available, even in favour of a defendant, and that, Your Honours, is notwithstanding the fact that there are at least two relevant provisions of the Constitution, both the sixth amendment, the right of every defendant to be confronted with witnesses against him, and to have compulsory process, and also the fifth amendment, the due process clause. Both of those, I may say so, Your Honours, are mentioned in United States v Nixon, at page 711.

Your Honours, so far as the position in Australia and New Zealand is concerned, it is our submission that there is no such established exception now, as that for which my friends have contended this morning. In relation to the United Kingdom, we accept that there does appear to be some form of exception, although the precise nature of it, we would submit, is still not entirely clear.

I do not propose to take the Court to Canada. Certainly I can answer questions if the Court wishes to know, but the position again is not clear. Your Honours, we submit that this Court should uphold the judgments in the court below, save to the extent we have mentioned the reservation we maintain about the judgment of Mr Justice Rowland in the Full Court. It is our submission that the proposed exception to legal professional privilege would be destructive of that privilege and therefore this Court should reject it. If, on the other hand, the Court were against us, we would submit next that the exception should only operate if the justification for the privilege has ceased to exist. That was the rider which Sir Robin Cooke proposed in Craig.

Now that would involve a situation that the accused, Your Honours, would have to show that there was no ground on which the client could any longer reasonably be regarded as having a recognisable interest in claiming privilege. That would have two consequences. In this case the first of those is that there is a positive finding of fact by Mr Justice Seaman, at first instance, that the respondents have a real and continuing interest in protecting their privilege communications. That is at appeal book page 92 at point 2 of the page, and the same matter is mentioned in the Full Court and, as we understand it, there is no appeal against this finding of fact in a judgment of Mr Justice Rowland at appeal book page 147, and in the judgment of the Chief Justice at appeal book page 115.

Unless there is anything further, Your Honours, those are our submissions.

BRENNAN J: Thank you, Mr Charles. Mr Garnsey.

MR GARNSEY: May it please the Court, we respectfully adopt the submissions of my learned friend, Mr Charles, and I understand Your Honours have an outline of our written submissions.

BRENNAN J: Yes. Give us a moment to look at it, Mr Garnsey.

MR GARNSEY: Thank you.

BRENNAN J: Yes, Mr Garnsey.

MR GARNSEY: May it please the Court, might I make three short submissions in relation to the United States authorities. We respectfully adopt the submissions of my learned friend, Mr Charles. In addition, Your Honour, we would draw the Court's attention to the American Law Institute "Model Code of Evidence" Rules 209-213. I need not take Your Honours to them. The point we wish to make is that the formulation by the American Law Institute in that Model Code, which is highly regarded, states the rule relating to legal professional privilege in the form of a fixed rule with fixed exceptions, including documents produced in furtherance of or for the purpose of a crime or fraud, and the rules do not envisage any such exception as that propounded by the appellant in this case.

Similarly, the Federal Uniform Rules of Evidence propound the rule as to legal professional privilege in the same form, that is a fixed rule with fixed exceptions, again with no exception, in the form propounded by my friend. While some of the exceptions are not precisely as formulated in Australian law, the exceptions do include the exceptions to the rule which are established in Australian law, but they include an additional one or two exceptions, for instance documents where the negligence of a legal representative is in issue. Our law would deal with that on the basis of waiver, presumably. If the client sues the legal representative, he necessarily waives any claim for privilege. Depending on the issues raised by the pleadings, the extent of that waiver is then determined. The American Law Institute and the Federal Uniform Rules make a specific reference to that sort of situation and another one or two situations.

The cases referred to by my learned friend, Mr Barker, were Hickman v Taylor and the high point, the State of New Hampshire v Eason. Hickman v Taylor, if I might defer submission as to that and deal with Eason's case first, if Your Honour pleases. Your Honours were taken to page 1209 of the reports in 577 A 2d, the perusal of the headnote and the top of the second column on page 1209 makes it clear that what was in issue was whether a State constitutional right could be enforced to compel the production of documents. So that case turned on a specific article of the New Hampshire Constitution which is referred to there. It cited in the column before at the beginning of the passage that my learned friend read, paragraph 6:

The final claim raised by the defendant is essentially that the superior court's ruling limiting the scope of his cross-examination of Bill Drew's attorney of record denied him his State constitutional right to "produce all proofs that may be favorable to himself".

And the subsequent passage on which my friend relies was in terms of explaining the content of that State constitutional right or rejected the argument that that right compelled production in the present case.

Your Honour, Hickman v Taylor was a case involving work product privilege and this is a doctrine which we submit there is no need for in Australia since the problems that it has been developed to remedy are dealt with otherwise. The first Australian solution to the problem is that there is a sole purpose test for privilege to arise as Grant v Downs makes clear and in that case the production of a report for multiple purposes and a hospital made the report admissible and not subject to privilege. The American authorities do not appear to have developed to an extent the sole purpose test as to a dominant purpose test.

Secondly, in relation to litigation and the availability of knowledge of the evidence to be adduced by the other side in criminal matters: apart from committal proceedings, there are the particulars and statements of Crown cases and witnesses which are provided so that in terms of an accused not knowing witnesses or the case which he is to meet, that is generally solved pre-trial. As also in civil litigation the pre-trial remedies of discovering interrogatories remove the need for any extensive work-product doctrine. As Your Honour Justice Toohey remarked, the names of witnesses, for instance, can be obtained upon interrogatories, even though the client has communicated those in a privileged communication to the lawyer.

The other matter is that it is only the communications which are privileged, not other work done by lawyers which merely records public non-confidential events. That has been considered in two cases at first instance, which appear to be the only cases relevant. They were not on the list, if Your Honours please. The first one is a decision of Justice French of the Federal Court of Australia in J-Corp Pty Ltd v Australian Builders Labourers Federated Union, 110 ALR 510. If I could hand up a number of copies and refer the Court to page 515, lines 5 to 30.

In that case Justice French held to be non-privileged videotapes of premises which the client had directed to be taken in advance of proposed action by the Builders' Labourers for the purpose of submitting to its lawyers. Justice French held that was a mere recording of a public event of public nature. It is perhaps an unusual case. Generally speaking clients do not arrange for material to be recorded for their lawyers in advance of accidents or occurrences or crimes.

But that case is a specific example of the principle which is further explained by Justice Anderson of the Supreme Court of Western Australia in Dalleagles v Australian Securities Commission, (1991) 4 WAR 325. At page 333, lines 30 to 50, His Honour distinguished between documents held by lawyers which recorded communications and copy documents which were privileged to the extent they tended to reveal communications, referring to some observations in this Court, but also distinguishing other matter such as draft statements, letters, et cetera, to the extent they did not record privileged communications as not being privileged.

So we would accordingly submit, if Your Honours please, that the aspects of privilege which are limited by the work/product doctrine in the United States are more than adequately dealt with in the various ways we have submitted in Australian law.

Your Honours, the third matter is that we have prepared a document headed Fourth and Fifth Respondents' Submissions on Applicant's US Authorities, copies of which were handed to Your Honours. That is merely an analysis of the cases in Part A of my learned friend Mr Barker's United States list. That is prepared for the purpose of indicating how, either expressly or analogously with Australian law, they deal with similar problems. I have referred to Hickman v Taylor and Eason's case, if Your Honours please, which are the main two cases.

If Your Honours please, the basis of legal professional privilege has been considered, as it has been noted in numerous decisions of this Court. The necessity for the doctrine in the public interest has been stated in various ways which are listed in paragraph 4 of the outline of argument, but the last three of the points that are mentioned relate to aspects which have not received attention in the submissions in this case to Your Honours so far.

In Attorney-General v Maurice it was pointed out that without legal professional privilege the proper functioning of the adversarial system would be greatly impeded or rendered impossible. Then, in Waterford's case, Maurice's case and Baker v Campbell there are various references, by the members of this Court, to the privilege as protecting and preserving the rights, dignity and freedom of the ordinary citizen under law. The passages are referred to and I would not propose to take Your Honours to them, unless Your Honours wish me to, but we have drawn a comparison with Canada. In Canada there is the Charter of Rights and Freedoms, but in Solosky v The Queen, 105 DLR, in a passage at page 760, the court stressed the importance of the privilege in relation to basic rights. It is the passage from Mr Justice Dickson which commences at the first independent paragraph on page 760:

One may depart from the current concept of privilege and approach the case on the broader basis that (i) the right to communicate in confidence with one's legal adviser is a fundamental civil and legal right, founded upon the unique relationship of solicitor and client, and (ii) a person confined to prison retains all of his civil rights, other than those expressly or impliedly taken from him by law.

That was a case concerning censorship of mail and the facts are not necessarily relevant, if Your Honour pleases, but we draw the attention of the Court to that statement as - - -

TOOHEY J: But, is that in the context, Mr Garnsey, of the charter?

MR GARNSEY: That statement in particular was not in the context of the charter, Your Honour, although there was a question whether the guarantee of a right to counsel was infringed and a reference to the Bill of Rights in section 2. A fuller consideration of that aspect, if Your Honour pleases, is in an extract from McDonald's work on the Legal Right in the Canadian Charter of Freedom, in the second edition. We have put that on the list and I think it was provided to Your Honours either with the first lot of material or in a supplementary lot.

The material extracted refers, in particular, at pages 505 to 508 of that work and, in particular, to the sections 2(e) and (f) of the Canadian Bill of Rights which provided that:

Every law of Canada shall.....be construed -

so as "not to abrogate", et cetera -

any of the rights or freedoms -

in the Charter "or applied so as to", and then to the relevant paragraphs:

deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause.

TOOHEY J: I am just having trouble following the relevance of the Canadian authorities. To the extent that they are based on the Bill of Rights or the Charter of Rights, are we helped?

MR GARNSEY: Your Honour, only to this extent, and I was going to make this point shortly in the next sentence, that there is no case that suggests that legal professional privilege offends those express statutory rights conferred in the charter, that is, an accused still gets a fair hearing with the application of the document of legal professional privilege. We rely principally in this area on the statements from Waterford, Maurice's case, and Baker v Campbell, to which we have referred in paragraph 4 in the fourth point, if Your Honour pleases.

Your Honours, the creation of the exception for which the appellant contends is, we submit, unnecessary for a number of reasons, two of which are dealt with in paragraph 5 of the outline of submissions. The first is that there is the sole purpose test, as a confining mechanism in Australia, which is not the case elsewhere. And, secondly, there is the existing exception of documents or communications brought into existence for the purpose of furthering a crime or fraud or for an illegal purpose; the basis of that being that the application of the doctrine cannot frustrate the administration of justice; the doctrine itself of legal professional privilege being intended and having as it its purpose the facilitation of the administration of justice under the adversary system.

The ground of appeal, which contained the suggested exception, was formulated as a suggested right in an accused person to automatically compel matter which tends to prove innocence, as my learned friend, Mr Barker, said, or which may assist in a defence. The rationale for this right he, with respect, has not spelt out in this case. He has at various stages suggested that the importance of ascertaining the truth is the basis for his suggested right. If that be the case then it is just as important that the Crown have the right to overcome the legal professional privilege of third parties when an accused is placed on trial; the Crown, in those circumstances, representing the community and the individuals in the community.

BRENNAN J: The argument against that is that Crown is not in peril.

MR GARNSEY: If Your Honour pleases, but the community is if a guilty person is not convicted upon all the available evidence which might properly be adduced. That is the answer we would, with the greatest of respect, make. So long as the procedure is fair in relation to the accused, the rules of natural justice are applied, there does not seem any good reason, with the greatest respect, for denying to the Crown in the interests of truth and the proper administration of justice, access to third parties' legally privileged material in a criminal trial, any more than the accused, on my friend's argument, should be denied.

There are a number of references to remarks in this Court in relation to the position of the Crown as prosecutor representing the community and the citizens of the community - they are set out in paragraph 9 - and there is also a reference in that paragraph to, in the last two cases, Reg v Cahill; Ex parte McGregor and Cain v Glass, each of which were cases in which it was held the Crown was entitled to enforce legal professional privilege to prevent an accused obtaining access to documents.

A criminal trial is, it is right to say, an adversarial process, but we seek to make the point in paragraphs 6 to 10 that legal professional privilege is central to the effective functioning of the adversary process and the administration of justice employing that process, and that is an important matter to be taken into account, in our respectful submission, in not abrogating it in a general way, even for an accused.

The suggested right has been expressly rejected in one case, again Lord Justice Goff in the English High Court in Butler v Board of Trade, (1971) 1 Ch 680, at pages 686 to 689. The suggested right of the accused is, as has been mentioned, a right of general application, that is, it can apply to any person about any act or transaction, at any time, and to a person who has in good faith sought legal advice either to ascertain whether he has committed a crime, whether he has sustained a liability or whether he may conduct himself so as to avoid committing a crime or avoid incurring a liability in the future.

The incursion into the basic right, we would say, of every citizen to legal advice, if this exception were created not merely for the accused but for, as we would say, necessarily the Crown, is very serious and the consequences would be so far reaching that they would be very difficult to list and impossible to estimate. It is, with respect, an exception which cannot be derived by analogy with the existing exceptions because the existing exceptions are based on the consistency of legal professional privilege applying generally in the interests of the administration of justice.

The exceptions have been stated by this Court and other courts precisely because they apply to circumstances which are inconsistent with the administration of justice, and the relevant references from decisions of this Court, and also some other decisions, are listed in paragraph 13. Your Honours, it is impossible, as a matter of logic, to reconcile the suggested exception with the making available of confessional statements or instructions by third parties to legal advisers, as been pointed out in argument.

One can only do that not as a matter of logic, not as a matter of consistency with any recognised doctrine or exception to legal professional privilege but only as a matter of ad hoc and, we would respectfully say, irrational decision.

The practical difficulties of devising a procedure for the application of the suggested exception are significant and, although perhaps one can say one can devise a procedure, the question is very difficult if the Crown as well as an accused is entitled to the suggested exception. In relation to the right to a fair trial considered by this Court in Dietrich's case, Your Honour Justice Toohey discussed a number of matters which pointed to the difficulty of a trial judge assessing pre-trial as a separate right whether or not there should be representation. In this present case, although it may be possible as a commencement of the process for a trial judge to require an affidavit from the person claiming privilege and the person seeking to overcome the claim for privilege as to materiality and relevance or possible materiality and relevance, it seems impossible to avoid a balancing exercise in setting the right to compel documents or evidence against the right of the person seeking to enforce legal professional privilege.

If a trial judge has to do that, there is an immediate collateral inquiry which may be small or it may be large, because he has to look at the significance of a third party's claim. In applying the present rule, all a judge has to do is look at the documents and say they appear on their face to be records of communications between client and legal adviser and they fall outside any of the recognised exceptions. The difficulty of estimating the imposition on a third party just does not arise.

If, as we respectfully submit, should this exception be created, the Crown should be entitled to the benefit of it, one has a situation arise which could cause considerable difficulty, that is, a trial judge would be in the position of determining what evidence should be available to be tendered either against or by an accused. That is the function of a judge outside the trial process and possibly, in relation to Federal Courts, outside judicial power as determined in various decisions of this Court.

It is a decision making engaged in notionally prior to even a committal proceeding to weigh up an accused's claim that these documents may help him or to weigh up the Crown's claim, should the Crown be entitled to the exception, that these documents should be available to be tendered against an accused.

There are some references to the remarks of this Court concerning the undesirability of a trial judge performing such a function in paragraph 11 of the outline of submissions in Jago v District Court and in Dietrich v The Queen and, too, a decision of the House of Lords in Reg v Sang, [1979] UKHL 3; (1980) AC 402.

Your Honours, as a matter of principle, we respectfully submit that because of the basal nature of legal professional privilege in the effective functioning of the system of the administration of justice largely by the adversarial's process in this country, the proposed exception should be rejected.

In this case, the position of the fourth and fifth respondents highlights the difficulties which arise and which will arise from the adoption of an exception which has no respectable legal origin. As paragraph 19 of the submissions points out, Mr Carter, the appellant is, along with his former partners, a defendant in civil proceedings brought in the Supreme Court of Western Australia against him and his former partners by Rothwells, claiming damages for professional negligence.

The factual history which is the basis for the claim is the same as the factual history which has lead to the charges, some of which are included at the beginning of the appeal book.

The documents in respect to which the fourth and fifth respondents are subpoenaed in very wide terms which may perhaps be described as "fishing" are documents which were created solely for the purposes of the civil litigation. If they are produced to Mr Carter or his legal representatives, in answer to this subpoena on this criminal charge, considerable difficulties arise. Those legal representatives are the same legal representatives as Mr Carter's representatives in the civil proceedings.

TOOHEY J: Mr Barker's answer to that, I think, was that there is an obligation of confidentiality attaching to those who have access to the material.

MR GARNSEY: Yes. It is very difficulty to carry out, with respect, Your Honour, unless one has a notional craniotomy.

TOOHEY J: I accept that, but counsel sometimes seem agreeable to finding themselves in that position.

MR GARNSEY: Yes, Your Honour. It is a position which is now perhaps more often than formerly challenged, and the rules governing the profession generally around Australia I think include a prohibition against using confidential information obtained in case A in case B.

TOOHEY J: All I am saying, Mr Garnsey, is that among the many answers you have raised to the principle suggested by Mr Barker, that is one that could perhaps be met by some obligation of confidentiality, difficult though it might be to carry out.

MR GARNSEY: We say in the present case it would be extremely difficult, if Your Honour pleases, if not impossible, even though there is a decision, British Coal Corp v Dennis Rye Ltd, referred to on page 7 at 19.3, which is to the effect that the provision of privileged information in criminal proceedings does not waive privilege in civil proceedings, even though there is an overlap in the issues, if it might be put that way.

The difficulties of achieving in this case, as a matter of practicality, suitable restrictions should the subpoenas be complied with are, we say, very great, if Your Honour pleases, if not impossible. This is evident from the appeal book. The charges against Mr Carter relate to the carrying out of audits over four years with a huge volume of documents. It is clear he wants to get access to a huge volume of documents. The civil proceedings deal with the same transactions and, for practical purposes, the same documents.

Your Honours, there is only one other matter which I am a little timorous in making a submission upon, and that relates to costs. Your Honours, it is apparent from the judgments of the courts below, and I refer in particular for convenience sake to the judgment of Chief Justice Malcolm at page 113 lines 15 to 35, that my learned friend has conducted this case in substance at first instance and completely on appeal - - -

TOOHEY J: Excuse me, Mr Garnsey, what page was that?

MR GARNSEY: I am sorry, page 113, Your Honour.

TOOHEY J: Thank you.

MR GARNSEY: Lines 15 to 35. I would only refer to that passage as indicating what the other longer judgments of the other members of the court made clear, that what was for decision on appeal was whether there was a balancing process to be embarked upon in the case of an accused seeking to overcome a claim for legal professional privilege, and it is clear from the judgment of Mr Justice Rowland, with which the Chief Justice agreed, that that was the matter for argument on the appeal before the Full Court, and it is clear from Mr Justice Seaman's judgment that that was the matter substantially for argument before His Honour. My learned friend obtained leave to appeal in respect of an exception to the doctrine of legal professional privilege. The case has not been put on that basis until leave to appeal was obtained and in this appeal, and should my friend succeed, we respectfully submit that, in any event, he should pay the costs of the unsuccessful parties to the appeal, that being the only ground permitted to him on appeal.

TOOHEY J: And should he fail?

MR GARNSEY: And should he fail, the same result, if Your Honour pleases, in relation to costs. I did make that submission on the application for special leave, that there should be a condition attached, Your Honours, but it did not seem to find favour, in relation to notice, on the grant of leave.

BRENNAN J: What orders were made in relation to costs in the courts below?

TOOHEY J: They were reserved, I think. Page 157.

MR GARNSEY: Yes. Your Honour, might I just obtain some instructions as to that? There was some subsequent argument and I would seek to find out whether there were subsequent orders made.

If Your Honours please, I am instructed that after this judgment and the orders of the Full Court, there was subsequent argument as to costs, and an order for costs was made in favour of the respondents to the appeal by the Full Court.

TOOHEY J: That is in respect of the appeal itself, is it, Mr Garnsey?

MR GARNSEY: Both in respect of the appeal and in respect of the hearing on this issue before Mr Justice Seaman. Those papers are not found in the appeal book, if Your Honours please.

BRENNAN J: Yes.

MR GARNSEY: Unless there are any other matters on which I can assist the Court, they are the submissions for the fourth and fifth respondents.

BRENNAN J: Thank you, Mr Garnsey. Yes, Mr Barker.

MR BARKER: If the Court pleases, as to costs, the argument in respect of the exception traversed precisely the same grounds as the other argument. The case has been neither longer nor shorter. I must admit it is not a relevant consideration.

Your Honours, as to what is a fair trial, may I cite without reading a passage from Your Honour Justice Deane's judgment in Jago, page 56, point 8, to page 57, point 8, and again the particular deference paid to the position of an accused person, we submit, lends weight to this application. It is not right to say, as my learned friend Mr Garnsey said, that this application is put on the basis that there should be ensured the revelation of the truth in criminal cases. We put it on the basis that there is a public interest in ensuring that an accused person can adequately defend himself, and it is quite beside the point to attempt to equate the position of the accused with that of the Crown. It is the stark difference between the accused and the Crown as recognised by law which is the basis of our reasoning.

My learned friend Mr Charles said that one effect of this might be that the accused would have the document for cross-examination and that might result in the acquittal of a guilty man, which is a proposition, I submit with respect, the Court would not find attractive. It tends to overlook the presumption of innocence and if the cross-examination upon a document produced from a third party will lead to a jury finding itself unable to convict beyond reasonable doubt, that, we submit, is a powerful reason why this application should succeed, because of course juries do not decide questions of guilt or innocence; they either make a declaration of guilt or say they cannot. One cannot approach this problem by worrying about guilt and innocence; one approaches it by worrying about the presumption of innocence and the burden of proof.

Your Honours, the width of the subpoenas which has been spoken of critically by both my learned friends was dictated in large measure by the width of the issues raised by the indictment. The indictment is reproduced at page 1 of the appeal book and Your Honours will see that it charges a conspiracy extending over five years between the three accused and one Mr Hugall, now deceased, from 1 June 1983 and 3 November 1988. It then proceeds to charge Mr Carter with the specific statutory offence of concurring in the publishing of written accounts in each of the years 1985 to 1988, and that is counts 4, 7, 10 and 12.

It really calls into question almost the whole active life of Rothwells Limited from the days when it emerged from the quiet respectability of being a men's clothier. Necessarily, the width of inquiry is enormous. We have been given, for example, something like 1500 overt acts said to support the proof of conspiracy and a case statement many hundreds of pages long.

TOOHEY J: And in a sense, Mr Barker, that has been overtaken by events, has it not? There may have been an objection to the subpoena that it was too wide, but the actual documents for which privilege is claimed are now identified.

MR BARKER: Yes, Your Honour. It is the problem of trying to adequately defend this sort of indictment that has led to these proceedings and I would hazard a guess that we are not the only people in that position which is why this is a matter of importance that is not just confined to Mr Carter.

In Mr Garnsey's submissions at paragraph 18, and in his oral submissions and Mr Charles' oral submissions, great emphasis is placed upon difficulties which may arise in individual cases and Your Honours have drawn attention to possible difficulties.

Your Honours, if the Court finds merit in the proposition that the privilege should in the right circumstances give way, in my submission, the control of potential difficulties could be met by investing the trial judge with a discretion. That is what I understand to be and what Your Honour Justice McHugh suggested at least by implication this morning; that is that the documents having been shown to be helpful, a discretion remains as to whether they should be disclosed. Now, that would include a consideration of the problem of confidentiality.

An illustration of how that is dealt with is to be found in the Saunders case at pages 24 and 25. At page 25 for example, Justice Henry said:

So a protection for the preservation of the privilege in civil litigation could be obtained by an undertaking given by the accused in those terms qualified by the proviso that that undertaking was not to be discharged without leave of the court in the civil proceedings, and with an undertaking of that sort. It seems to me that the protection of legal professional privilege in the civil proceedings would be preserved to a large extent.

And it is to be noted, Your Honours, that in that case, Mr Saunders and Guinness were competents in the civil litigation and that was an issue which was agitated during argument in that case. As here, Mr Carter's firm and the liquidator are adversaries.

I am indebted to Your Honours.

BRENNAN J: Thank you, Mr Barker. The Court will consider its decision in this matter.

AT 3.24 PM THE MATTER WAS ADJOURNED SINE DIE